In re T.W.

Court of Appeals of Tennessee, Knoxville

April 17, 2018

In re T.W. et al.

Session November 14, 2017

Appeal
from the Chancery Court for McMinn County No. 2015-CV-346
Jerri Bryant, Chancellor

In this
termination of parental rights case, J.B.H. and H.D.H.
(prospective parents) filed a petition to terminate the
parental rights of M.A.W. (mother) and E.R.W. (father) in
order to adopt two of their minor children, T.W. and B.W.
(the children). S.A.G. (grandmother) and M.W.G.
(grandfather[1]) are the maternal grandparents of the
children. They joined the prospective parents as
co-petitioners. The trial court found clear and convincing
evidence that mother and father abandoned their children by
willfully failing to visit and support them during the
relevant statutory time frame. By the same quantum of proof,
the court also determined that termination is in the best
interest of the children. Consequently, the court entered an
order terminating the parents' rights. Mother appeals the
trial court's order terminating her rights.[2] We reverse.

In
March 2014, mother and father resided in Autauga County,
Alabama, with their two children, B.W. (eight months old) and
T.W. (two years old). On March 14, 2014, mother pleaded
guilty to theft of property and was subsequently
incarcerated. Shortly thereafter, grandmother, who lives in
Etowah, Tennessee, was informed that mother was in jail and
that father was not taking proper care of the children.
Grandmother then drove to Alabama and filed a petition with
the Juvenile Court of Autauga County, Alabama, seeking
emergency temporary custody of the children. On March 19,
2014, after determining that the children's
"medical, nutritional, clothing, and shelter needs
[were] not being met" and that the children were
"being exposed to narcotics use, abuse, and sales,
" the court grant temporary custody to the grandparents.

A few
months later, on June 25, 2014, the Juvenile Court of Autauga
County entered a final order, which states, in relevant part,
as follows:

Based
upon all evidence it is ORDERED as follows:

The children remain dependent.

The [grandparents] are granted full legal and physical
custody of the minor children.

. . .

The Mother and Father shall attend and complete an intensive
drug rehabilitation program and pass all drug tests. The
parents are allowed telephone access to the children and may
send letters/cards, etc. to the children.

Upon completion of the drug program, proof of negative drug
screens, proof of stable living arrangements and stable
employment, the Mother and Father shall be allowed supervised
visitation with the children to be supervised by Petitioners
at times/places mutually agreed.

Upon proof of continuous, consistent visitation by the
parents, the parents may file for expanded visitation. . . .

(Paragraph numbering in original omitted.).

Upon
entry of this order, grandparents returned to Etowah with the
children. A few days later, on or around June 30, 2014,
mother sent a birthday card containing $60 to T.W. at the
grandparents' home address. Mother testified that she
called her children on the telephone multiple times in the
days that followed. According to grandmother, mother's
calls "upset" the children because mother
repeatedly told the children that she would come to get them.
Grandmother and mother both testified that in July 2014 the
Alabama court revoked mother's right to call her children
on the telephone and allowed grandmother to change her
telephone number.[3] Grandmother owned two telephones; however,
she testified that she only changed one of her telephone
numbers.

In
August 2014, pursuant to the Alabama court's order,
mother moved to a drug rehabilitation facility. She completed
the rehabilitation program in about one month; however,
because mother wanted additional assistance, she voluntarily
enrolled in two other rehabilitation programs and continued
to seek treatment until May 2015. At some point during her
rehabilitation treatments, mother gave birth to C.W., over
whom she maintains custody and who is not a subject of the
present litigation. Mother claims that, while she was in
rehabilitation, she attempted to contact her other children
by calling grandmother many times utilizing the telephone
number that grandmother had not changed. According to mother,
grandmother either did not answer her calls or "hung up
in [her] face." Grandmother denies that mother ever
tried to call her after the Alabama court supposedly
suspended her right to telephonic communications. The trial
court found grandmother's testimony more credible on this
point.

In
November 2014, mother filed a pro se petition in the Juvenile
Court of Autauga County, Alabama, for reinstatement of her
co-parenting rights. However, because the children were
living in Tennessee and mother was living at a residential
treatment center in Georgia, the Alabama court ultimately
dismissed the petition for lack of personal jurisdiction.

Meanwhile,
grandparents began allowing friends from their church,
including prospective parents, to help look after the
children. One of the prospective parents testified that he
and his wife met the children in September 2014 and baby-sat
them six or seven times over the next couple of months.

When
grandfather's health began to decline in the fall of
2014, grandparents asked the prospective parents if they
would be interested in helping with the children to a greater
extent. The prospective parents agreed to baby-sit the
children more frequently and in January 2015 the grandparents
executed a power of attorney which gave the prospective
parents the authority to make educational and healthcare
decisions for the children. By March 2015, the prospective
parents were keeping the children six to seven days a week;
grandparents still routinely spoke to and visited the
children, and the grandparents sometimes kept the children
...

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